Noor Mohammad Sheikh vs Kashem Ali Sheikh and Another

Soumen Sen, J.—The cause of action, according to the plaintiff, is the threatened act of dispossession. The plaintiff claims that on 15th September, 2007 the defendants tried to dispossess the plaintiff and in view thereof the plaintiff was compelled to institute the present suit. Thereafter the suit progressed and the plaintiff filed its evidence on affidavit. During cross-examination on 19th November, 2008 the plaintiff stated that during the pendency of the suit he was dispossessed on 24th December, 2007. In the application for amendment the plaintiff stated that although he was dispossessed in respect of some portion of the suit premises on 24th December, 2007 but the said fact could not be informed to the learned advocate who was conducting the suit on behalf of the plaintiff. It was stated that due to unintentional mistake, the said fact was not brought to the notice of the learned advocate during the pendency of the suit proceeding and accordingly the petitioner prayed for amendment of the plaint by incorporating the prayer for decree for khas possession of the schedule property. In resisting the said claim it is contended by Mr. Bhattacharyya, learned counsel appearing for the opposite parties that during cross-examination the plaintiff admitted that Kashem forcibly had taken possession of the suit property and since last year they are in possession. In the cross-examination the plaintiff however, did not specify the exact date of dispossession but it is stated that the defendant had forcibly entered the suit property and had taken the possession of the suit property. It was after such cross-examination the application for amendment of the plaint was filed seeking recovery of possession. Mr. Bhattacharyya has submitted that this application is required to be dismissed on the ground that the plaintiff has failed to fulfill the twin test as contemplated in the amended provision of the CPC namely Order 6 Rule 17 of the Code of Civil Procedure. It was submitted that the plaintiff was aware of the fact that he was dispossessed prior to filing of the suit and prior to trial and raising these issues for the first time after commencement of the trial during the stage of hearing is impermissible. In this context, he relied upon a decision of the Supreme Court in the case of Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, . In Rajkumar Gurawara (supra) the appellant filed a suit seeking declaration of his exclusive rights to do mining operation in the suit property. On 8th July. 2002 the appellant came to know that the respondent No. 2 invited some companies to take the suit lands on lease against the rights and interests of the appellant. On 20th August. 2002 the appellant filed the original suit being No. 6/02 seeking declaration of his exclusive right to do mining operation, to use and sell over the suit lands against the respondent No 2''s infringement of such exclusive right of the appellant over the suit lands. During the pendency of the suit, the second defendant was impleaded. The appellant after closing of evidence and during the course of argument filed an application under Order 6 Rule 17 read with section 151 of the CPC for amendment of the plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages in favour of the plaintiff for their mining operation from the defendants and for grant of damages. In this, factual context, the order of the learned Additional District Judge in allowing the application for amendment was considered. In deciding the said application the Hon''ble Supreme Court held as follows :

To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.

In my respectful reading of the said judgment it appears that the test of due diligence would apply with greater vigour in a situation where not only there is commencement of the trial but there is completion of the evidence and in the event such amendment is allowed serious prejudice would be caused to the opposite party. Mr. Bhattacharya also in this regard referred to a decision of the Supreme Court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others, and submitted that unless the petitioner has been able to demonstrate that in spite of due diligence such amendment application could not have been filed earlier or if the said application lacks due diligence, the Court has no jurisdiction to allow such amendment. In J. Samuel (supra) in a suit for specific performance the plaintiff failed to state the essential pleading which is mandatory in terms of section 16(c) of the Specific Relief Act. In view of lack of such pleading, the suit itself is not maintainable. Such inherent defect was sought to be cured by taking an application for amendment on the plea that due to typographical error such pleading was omitted. This was disbelieved. In a suit for specific performance, it is mandatorily required that the plaintiff must state that he is ready and willing to perform his obligation and in the absence of such essential pleading, he is not entitled to a decree for specific performance. In fact, the suit may fail on that ground. This was sought to be pleaded by adopting a backdrop procedure and on the plea that due to ''type mistake'' such essential averment was omitted. The amendment in the case of J. Samuel (supra) runs into few sentences. It was on this fact, the Supreme Court held that the said amendment application cannot be allowed not only on the ground that it lacks due diligence but the reason for the amendment on the ground of typographical error cannot be accepted. However, in paragraph ''18'' of the said decision, the Hon''ble Supreme Court reiterated that the primary aim of the Court is to try the case on its merits and ensure that rule of justice prevails. The relevant observations of the Supreme Court are in paragraphs ''17'' to ''21'' which are reproduced below:

An argument was advanced that since in the legal notice sent before the filing of the suit there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the Court from entertaining the said application which we are unable to accept in the light of section 16(c) of the Specific Relief Act as well as proviso to order 6 Rule 17. The only reason stated so in the form of an affidavit is omission by "type mistake". Admittedly it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of section 16(c) of the Specific Relief Act.

The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court''s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that:

.....no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. (emphasis supplied)

Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party''s constructive knowledge, claim and is very critical to the outcome of the suit.

In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.

The Hon''ble Supreme Court in a decision reported in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, considered the amended provision of Order 6 Rule 17 of the CPC and laid down certain guidelines for exercising such discretion in paragraphs ''63'' and ''64'' which are reproduced below:-

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case.

(2) Whether the application for amendment is bona fide or mala fide:

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money:

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation:

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendment the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

The same view was reiterated in a decision in the case of Surender Kumar Sharma Vs. Makhan Singh,

The instant amendment application has been filed to bring on record certain subsequent events that have occurred according to the plaintiff after filing of the suit. In the suit the plaintiff has already prayed for declaration but the prayer for recovery of possession according to the plaintiff became necessary in view of dispossession during the pendency of the suit. Although trial has commenced but such amendment cannot prejudice the trial. On the contrary, if such amendment is not allowed and subsequent events are not brought on record, it would result in multiplicity of proceedings. It cannot be doubted that the plaintiff would be otherwise entitled to maintain the suit for recovery of possession consequent upon dispossession during the pendency of the suit. Ordinarily a suit or an original proceeding is to be tried in all its stages on the cause of action as it existed on the date of its commencement. The exception to this rule may be summarised in the manner following.

(i) Where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate or:

(ii) it is necessary to base the decision of the Court on the altered circumstances in order to shorten the litigation; or

(iii) To complete justice between the parties.

The aforesaid principles enunciated by Sir Ashutosh Mukherjee, J. in the case of Rai Charan Mondal v. Vishnu Charan Mondal reported in AIR 1915 Calcutta 103, has since been followed by other courts and the Hon''ble Supreme Court. In Kedar Nath Agrawal (Dead) and Another Vs. Dhanraji Devi (Dead) by LRs. and Another, the Supreme Court considered the impact of subsequent events on the original proceeding and held as follows:

In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A Court of law may take into account subsequent events inter alia in the following circumstances:

(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate: or

(ii) it is necessary to take notice of subsequent events in order to shorten litigation: or

(iii) it is necessary to do so in order to do complete justice between the parties.

The same view was reiterated in the cases of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, , Ram Kumar Barnwal Vs. Ram Lakhan (dead), . Carona Ltd. Vs. Parvathy Swaminathan and Sons, and Jai Prakash Gupta (D) thr. LRs. Vs. Riyaz Ahamad and Another, . In Jai Prakash (supra) amendment was allowed to bring subsequent events and while allowing such amendment the following observations were made:

It also reminds us of a celebrated judgment of a Full Bench decision of the Nagpur High Court in Chhote Khan v. Mohd. Obedulla Khan AIR 1953 Nagpur 361 in which the view of the Court to take note of the subsequent developments specially at the appellate stage was taken up for consideration. Hidayatullah, J (as His Lordship then was) held as under: (AIR p.364. para 7)

(On a review of judicial opinion.) that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action.... No doubt,. Courts ''can'' and sometimes ''must'' take notice of subsequent events, but that is done merely ''inter partes'' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right... of the plaintiff". (emphasis supplied)

In view of the discussions made hereinabove, it is therefore a settled proposition of law that subsequent developments of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court, even at any stage of the proceeding, is not precluded from taking a cautious cognizance of the subsequent developments of fact and law to mould the relief.

Keeping these principles in mind and considering the nature of subsequent developments as brought out by the parties during the pendency of the writ petition, we are of the view that we will have to find out a solution within the scope of this exception. Therefore, the test is whether the subsequent events of fact have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief awarded before consideration of such subsequent events.

In view of the statements made in the counter-affidavit filed by the appellant landlord to the extent that he has got two grown-up sons and a daughter and that being the position, the requirement of the present landlord has increased and, therefore, the respondent tenant is liable to be evicted. That being the position, we are, therefore, of the view that it would be open to the appellant landlord to file an application for amendment of the original release application for the purpose of incorporating the fact of the requirement of two sons and a daughter by amending the same, to which it would be open to the respondent tenant to file written objection.

Mr. Aniruddha Chatterjee learned counsel appearing for the petitioner relied upon in the case of Sampath Kumar Vs. Ayyakannu and Another, in support of his contention that such amendment should be allowed. In the case of Sampath Kumar Vs. Ayyakannu and Another, and in the case of Prem Bakshi and Others Vs. Dharam Dev and Others, . In Sampath Kumar (supra) it was held that if the proposed amendment does not alter the basic structure of the suit, such amendment may be allowed in order to curtail the multiplicity of legal proceedings. It was also held that mere delay in making the application cannot be a ground for refusing the prayer for amendment. In the same vain, in Prem Bakshi (supra) the Supreme Court in paragraph ''6'' observed as follows:

Now the question is whether the order in question has caused failure of justice or irreparable injury to Respondent No. 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party.

Although in the aforesaid two decisions the question of due diligence did not come up for consideration but having regard to the decision of the Hon''ble Supreme Court reported in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, it can be safely concluded that refusing amendment would in fact lead to injustice and in any event to multiple litigation. It was held in the said decision, as a general rule, the Court should decline amendment if a fresh suit on the amended claims would be barred by limitation on the date of application. It is the duty of the Court to decide the lis in a manner so that all the controversies between the parties could come to an end. The normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations [Pratap Rai Tanwani & Anr. v. Uttam Chand & Anr. (supra). The basic purpose of all litigation is to have a fair and proper adjudication of all the disputes that are raised in the suit without leaving any side issue which may raise its head in future and would keep the acrimony alive for all times to come. The subsequent events are allowed to be brought on record by way of amendment in order to avoid multiplicity of proceedings. In taking into consideration the aforesaid factors, in my view, the amendments should have been allowed.

Accordingly, the order dated 3rd December, 2008 passed by the learned Civil Judge, (Junior Division), 2nd Court at Baruipur is set aside. The application for amendment is allowed. The plaintiff would be permitted to carry out such amendment within a period of two weeks from date and serve a copy of such amended plaint upon the opposite parties. It would be open for the opposite parties to file any additional pleading if so advised. In the event, the plaintiff proposed to lead any evidence, consequent upon such amendment to the plaint, it should restrict to such amended portion and the plaintiff should not be permitted to canvass any other point under the garb of such amendment since the examination in chief of the plaintiff has already been concluded.

The defendants would be permitted to further cross-examine the plaintiff on the basis of the amended plaint. Since there are some delay in taking out the said application for amendment, the defendants are required to be compensated by costs. The plaintiff would pay a cost of Rs. 2,000/- to the defendants as a condition precedent for carrying out such amendments. Such costs is to be paid within a period of two weeks from date. In the event such cost is not paid, the plaintiff would not be permitted to amend the said plaint and the trial would proceed without such amendment.

The present application is thus allowed. There shall be no order as to costs.

Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.